Court Rules Jurors can be Informed that Fact Witnesses are Well-Paid for Testimony

Trial judges may admit testimony from high-paid fact witnesses, but should alert the jury to the danger of bias, New York’s highest court ruled last week. At issue was a $10,000 fee paid to fact witness Barry Krosser, an emergency room physician who treated a patient for a fall she had suffered. New York law provides for a “minimum fee” of $15 per day and 23 cents per mile for subpoenaed witnesses, but parties may pay more.

The patient, Bessie Caldwell, later sued Cablevision Systems Corp. for her injuries, which she alleged were sustained when, while walking her dog, she tripped over a trench the company had dug while installing underground high-speed fiber-optic lines. At trial, however, Cablevision put Dr. Krosser on the stand and he testified that he wrote in his notes that night that Caldwell had “tripped over a dog while walking last night in the rain.”

Under cross-examination, Krosser acknowledged the fee, but insisted it had no effect on his testimony. Although the judge rejected the plaintiff’s request to exclude the testimony entirely, he suggested the attorneys address the issue in their summations. The jury found the company negligent, but not responsible for Caldwell’s accident.

“We, like the Appellate Division, are troubled by what appears to be a substantial payment to a fact witness in exchange for minimal testimony,” wrote Judge Eugene Pigott for the Court of Appeals, which is New York’s highest court. “Such payments, when exorbitant as compared to the amount of time the witness spends away from work or business, create an unflattering intimation that the testimony is being bought or, at the very least, has been unconsciously influenced by the compensation provided.”

Noting that compensating witnesses for their time and effort is a way to assist the process of finding the truth, the Court emphasized, however, that it “is against public policy…to pay a fact witness in exchange for favorable testimony, where such payment is contingent upon the success of a party to the litigation.”

Stressing that a line must be drawn “between compensation that enhances the truth seeking process by easing the burden on testifying witnesses, and compensation that serves to hinder the truth seeking process because it tends to influence witnesses to remember things in a way favorable to the side paying them,” the court ruled that the court should have instructed the jury that if it believed the witnesses’ fee was “disproportionately more than what was reasonable for the loss of the witness's time from work or business, it should then consider whether it had the effect of influencing the witness’s testimony.”

Nevertheless, the court also ruled, in this case, that the judge’s failure to give such an instruction was harmless, because “the substance of the doctor’s testimony was such that the jury’s assessment was only tangentially related to the doctor's credibility.”